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https://doi.org/10.1007/s42439-020-00028-9
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Parliamentary Democracy by Default: Applying the European Convention on Human Rights to Presidential Elections and Referendums
[Zeitschriftenartikel]
Abstract This paper is concerned with the Convention's "democracy clause," that is Article 3 of Protocol No. 1, which provides for the right to free elections. Why should it be described as a "democracy clause" and what is its significance for today? The paper first sketches out the drafting history, which r... mehr
This paper is concerned with the Convention's "democracy clause," that is Article 3 of Protocol No. 1, which provides for the right to free elections. Why should it be described as a "democracy clause" and what is its significance for today? The paper first sketches out the drafting history, which reveals that while the framers were keen to preserve their inherited domestic institutions, they also thought it crucial to promote democracy. The Convention invokes but does not define democracy. It is within the Court's competence to elucidate its meaning. The Court holds that pluralist democracy is the only system compatible with the Convention. This paper argues that Article 3 of Protocol No. 1 further presupposes a representative legislature. It does not require member states to introduce a specific system of elections and representation, but it obliges them to conform to parliamentary democracy. Thus, the Court's model of democracy rests on two pillars: pluralism and parliamentarism. It subscribes to pluralist democracy theories but contradicts the monolithic conception endorsed by Carl Schmitt. The Court's model has the potential to offer a robust account of democracy. Yet, Article 3 of Protocol No. 1 has never lived up to its potential. The Court's relevant jurisprudence is inadequate to address the contemporary antidemocratic shifts that are underway in certain member states. Hence, the paper suggests that the Court's power to apply this clause is not limited to general elections but also extends to presidential elections and referendums.... weniger
Thesaurusschlagwörter
Menschenrechtskonvention; Parlamentarismus; Demokratie; Präsidentschaftswahl; Volksentscheid; Europa; Europäischer Gerichtshof
Klassifikation
Europapolitik
Recht
Freie Schlagwörter
Article 3 Protocol 1; European Convention on Human Rights; parliamentary democracy
Sprache Dokument
Englisch
Publikationsjahr
2020
Seitenangabe
S. 237-258
Zeitschriftentitel
Jus Cogens, 2 (2020) 3
ISSN
2524-3977
Status
Veröffentlichungsversion; begutachtet (peer reviewed)